Case No: B4/2012/2248
Neutral Citation Number: [2012] EWCA Civ 1901
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY 
FAMILY DIVISION
(MR RECORDER GREEN) 
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 14th December 2012
Before:

LORD JUSTICE THORPE
LORD JUSTICE ELIAS
and
LADY JUSTICE BLACK

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IN THE MATTER OF B (Children)

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Mr Stephen Bellamy QC (instructed by Osbournes Solicitors) appeared on behalf of the Appellant grandmother.
Mr Andrew Norton (instructed by Surrey County Council) appeared on behalf of the First Respondent local authority.
The Second, Third, Fourth and Fifth Respondents did not appear and were not represented.
Ms Andrea Cisarova appeared on behalf of the Intervener, the Slovak Republic.

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Judgment

Crown Copyright©Lord Justice Thorpe: 

1.	I very much regret that I find myself once again delivering a supplemental judgment in this appeal.  In my opinion it should not be necessary given the fact that our core judgment of 9 November was supplemented by a secondary judgment on 16 November, in which we gave a very clear indication as to the way ahead.  

2.	The story that we have been told this morning, now a month late, is that, on 16 November, leading counsel for the appellant and for the local authority were quite unable to reach agreement as to the form of the order, and, more importantly, were quite unable to reach agreement as to the inception and pace of the transition which inevitably flows from the primary decision of this court that this is not a public law case in outcome and that these children need to be in the care of their grandmother as soon as that transition can be arranged consistently with their welfare.  

3.	The performance of the local authority since seems to me, albeit without the fullest investigation, lamentable.  We have not had any evidence from officers of the county council, which might of course explain or justify what on the correspondence seems to have been almost a conscious endeavour to defy the direction and pace for transition clearly set out in the judgment of the majority on 16 November.  

4.	The tragedy is that, whoever may be responsible for the confusion, lack of control, and lack of direction over the last four weeks, the children have suffered.  The transition is now more difficult to manage and plan than it was on 16 November.  A precious period of four weeks has elapsed which only increases the uncertainty for the children and introduces the stagnation of a process which essentially required firm forward progress.

5.	Today we are therefore faced with three rival plans to achieve transition in the circumstances that have arisen, but the circumstances that never should have arisen.  We have to choose between the transition plan advanced by Ms Cisarova for the Slovak Republic, which in all the circumstances is an understandable expression of fully justified frustration at the performance of public authorities in this jurisdiction.  

6.	We have to then consider the care plan which is advanced by the local authority.  In that it proposes no commencement before 4 January it provokes the suspicion that once again the local authority are by one means or another so dissatisfied with the primary ruling of this court, a dissatisfaction that finds maybe unconscious expression in the proposals advanced its officers.  

7.	Mr Bellamy has, as it were, built on that by saying, well, we will accept the pace, providing that the commencement and the conclusion are fixed to get the children back to their homeland on Christmas Eve.  

8.	The local authority’s plan has the support of Mr and Mrs F.  Perfectly understandably, they see ahead of them a difficult job, and obviously the more time they have in which to achieve the court’s end, perhaps the more comfortable they will feel.  In addition, Ms Gibb on their behalf points to the fact that the local authority’s plan would allow a speech therapist consultation on 18 December and an ENT consultant’s appointment on 14 January.  She has made the forceful point that the support of Mr and Mrs F is critical and accordingly sympathetic consideration should be given to their preference.  She adds that her clients issued an invitation to the grandmother to what would, I suppose, be a Christmas tea on the afternoon of Christmas Day.

9.	Our first task, perhaps, is therefore to be much more directive in relation to the next steps than we were on 16 November.  On that occasion we relied on the responsibility of the local authority.  We relied, perhaps over-optimistically, on the belief that there would be harmony, that there would be collaboration and that there would be a general acceptance of the orders of this court.  In that we have been disappointed.  The submission made by Mr Bellamy, which has much force with me, is that this transition plan proffered by the local authority saw the light of day at about 30 minutes past midnight this morning and is written without any consultation at all with the grandmother or with her very experienced solicitor and counsel.  

10.	How then should we be directive?  If fairness to adults and general justice were to rule, I would certainly opt for Mr Bellamy’s plan, if not that of Ms Cisarova.  But whatever the history of adult behaviour, we have to above all search for the welfare of the children, and I reach the reluctant conclusion that the proposal of Ms Cisarova and, more narrowly, the proposal of Mr Bellamy fail the test of what is best for the children.

11.	Accordingly I would reject all three proposed transition plans.  I would direct that the process of transition must start immediately, by Monday next at the latest, and that it must be completed to ensure that these children have left this jurisdiction and arrived in Slovakia by 4 January at the very latest.  

12.	Within the transition plan there must be included clear arrangements for grandmother’s contact.  I entirely sympathise with Mr Bellamy’s submission that the restriction of the grandmother to supervised contact in a contact centre at extremely infrequent occasions is simply incomprehensible, if the decision maker were having regard to the welfare of the children as the paramount consideration and were having proper regard to all that the grandmother has to offer them in the context of their longstanding relationship.  So there must be writ clear in the transition plan, at an early stage, the opportunity for grandmother to have normal contact with her grandchildren, which means contact in her own home without the presence of a social worker, which inevitably imports a degree of unreality.

13.	How should the orders of this court then stand?  We have already made a residence order which lies on the table and that will now be perfected.  The management of the transition should therefore be within the guise of an agreement between the grandmother and the parents that the children remain in the accommodation of Mr and Mrs F under Section 20 of the Children Act 1989, namely a voluntary placement.  There must be undertakings from mother and father in person, and grandmother represented, that they will not withdraw their agreement to that voluntary placement until the conclusion of the transition plan and the children’s removal to Slovakia.  Should they contemplate withdrawing their agreement, they must give not less than 48 hours’ clear notice in writing to the local authority, and they would need to apply to a judge of the Division to be released from their undertaking.  That seems to me to be a balance between empowering the local authority, as to which I would have little confidence in view of recent history, and empowering the grandmother by making a residence order simpliciter.   

14.	It is high time that the adults surrounding these children, whether they be family members, whether they be laudable foster carers, or whether they be local authority officials, started working wholeheartedly to achieve the result which we impose.  If there is some fundamental unforeseen development which requires judicial intervention then there must be an application to the Applications Judge of the Family Division.  

15.	There is some uncertainty surrounding the status of Mr and Mrs F in these proceedings.  Certainly, they took no part in the appeal between the date of its start by Appellant’s Notice and the primary judgment of this court of 9 November.  We have very naturally given them opportunities since to state their position, their wishes, their feelings, their evaluation of the children’s welfare, through the medium of their legal team.  I myself remain doubtful as to whether they have party status.  Certainly if they have it must be as a result of orders made in the court below rather than any grant by this court.  If further examination of the orders below reveal that they lack party status, and if this matter goes to the Supreme Court, they of course will have the opportunity to apply for intervener status in that court, with every sound foundation.

16.	At this stage, I speak only for myself in saying that I would refuse the application for permission to appeal, since I do not believe that any point of general principle has been articulated by Mr Norton in advancing this application.  That is the outcome that I would propose today.

17.	We are refusing a stay.  This transition plan needs to get going and there needs to be no doubt at all as to how this court perceives that the welfare of the children is best met.  Mr Norton has already said that he has been in contact with the Registrar of the Supreme Court, and if the local authority decides that they are going to renew their application to that court I think it is our general view that they should get their petition in by Wednesday next, 19 December.  

Lord Justice Elias:

18.	I agree.  It seems that almost before the ink had dried on the judgment given on November 16 the local authority had determined that they were going to take no steps to give effect to the court’s judgment because they wanted an order of the court which they could appeal to the Supreme Court.  They did, it is true, seek to come back and reconvene the court so as to make their decision clear.  What they did not do is to make it unambiguous and clear to the members of the court that that was the position they were adopting so that we might have convened far earlier than has now happened.  The delay has not in my view been in the interests of these children, and I have to say I also find it astonishing that the grandmother, who has been here now for some time at great costs and inconvenience to herself, should have been denied contact with the children, ostensibly it seems on the grounds that the local authority has taken the view that to allow that contact might in some way undermine any appeal that they ultimately might wish to pursue before the Supreme Court.

19.	With some reluctance, because I quite see why the grandmother would want the children back in Slovakia by Christmas, I agree with the way in which my Lord, Lord Justice Thorpe, has proposed to resolve this matter.  It seems to me that we must set a timetable but the timetable suggested by the grandmother and by Ms Cisarova for the Slovak authorities was, I think in all the circumstances, just too tight.  But on all other matters I agree with my Lord, Lord Justice Thorpe.

Lady Justice Black:

20.	The parties are hotly in debate about the rights and wrongs of the period since the 14 November hearing, not least in relation to the relative absence of contact for the grandmother in the meanwhile, which may be thought to be, to put it perhaps mildly, a missed opportunity.  Whatever the rights and wrongs about that, I must keep the welfare of these children firmly at the forefront of my mind and it has to guide my decision making.  We have, as my Lord, Lord Justice Thorpe, has said in the course of this hearing, lost a month, and we cannot recover that.  The plans now will have to proceed on the basis that it is 14 December and not 14 November.  On the last occasion I indicated that I had increasing anxiety about this case and that I would have returned it to a High Court judge for the reasons and purposes which I set out in paragraph 30 of the now transcribed judgments.  My Lord, Lord Justice Thorpe, has been more sanguine and intended that matters should proceed towards a reunification and a return to Slovakia under the eye of this court.  I have therefore had to respect that that is going to be the decision of the court and look constructively at how it is to be achieved.  Fortunately the Slovakian authorities have responded very helpfully with the material that everyone anticipated would be needed about arrangements in Slovakia on the children’s return and no point is raised about the sufficiency of that material.  I have also seen correspondence between the judiciary in Slovakia and Thorpe LJ’s office, which is also in helpful terms.

21.	The plan now proposed by Mr Bellamy on behalf of the grandmother, however, results in the children arriving in Slovakia on Christmas Eve, and Ms Cisarova’s plan would have them arriving slightly earlier than that.  I do not consider that it would be prudent for the children to arrive when the courts would be reduced or about to be reduced to an urgent service only, as they would be between 24 and 27 December, and social services, and presumably also psychological and medical services, just embarking on their holidays and therefore less able to respond to any welfare issues that there might be in relation to the children.  It is unclear how matters will transpire when the children get back to Slovakia, but it is contemplated that the court and social services, medical services and so on will be involved, and therefore it is not in my judgment in the children’s best interests for them to arrive at that particular point in the calendar.

22.	Although I appreciate how frustrating this will be for the grandmother, who wishes to return with the children by Christmas, I would therefore delay the plan until the immediate Christmas period is over and, like my Lord, Lord Justice Thorpe, I consider that it should commence now and achieve a return according to the plan that he has outlined, which I think is in the best interests of the children, given the decision of this court.  An additional advantage of a slightly longer transition period is that it accords rather more with the local authority plan, which had the approval of the Feys.  Their support is very important to these children, and they have shown their good will by their offer to allow the grandmother to have contact in their home on Christmas Day.  The longer transition period may also have the benefit of enabling Martin to attend two outstanding medical appointments if by any chance those can be advanced by the doctors and the speech therapist in agreement with the local authority.

23.	I differ, however, from my Lords, Lord Justice Thorpe and Lord Justice Elias, as to the framework within which this transition plan would be achieved.  The threshold was satisfied before the Recorder and has not been overturned and I would protect the children with an interim care order pending the transition from foster care to the care of the grandmother.  That interim care order would have been timed to last until the family leaves for Slovakia, at which point the residence order that this court is making would have taken effect.  It would have ensured that the children, who have been living with the foster carers now for approximately two years, would have the protection of the overarching supervision of the local authority.  I stress to the local authority that, assuming that they do not succeed in any appeal that they may be allowed to bring, and until then, they have of course got an obligation to achieve what has been ordered by this court.  If this court had gone down the route of making an interim care order I would then have gone on to make a contact order to ensure that everyone knew what the arrangements were going to be in the interim period.  

24.	Reliance on section 20 of the Children Act is not satisfactory in my view because accommodation upon that basis could come to an end by not only the grandmother withdrawing her agreement to it but also the parents, and although some reassurance would be offered by their undertakings I would have preferred to have the greater security of an interim care order.  I will not explain any further my reasons with regard to that because I am in the minority.   I would however just add that an interim care order would have maintained the involvement of the guardian, which a residence order will not.  

25.	I also would not give permission to appeal to the Supreme Court but I am not sure if I can recollect what my Lord, Lord Justice Thorpe, said about staying the order of this court, but perhaps we will need to come to that.

Order:  Appeal allowed.